The Pablo Hasél Case 2.0: Slander and Defamation of the Spanish Crown According to the ECtHR

by Babette De Naeyer

Pablo Rivadulla Duró is a Spanish rapper, better known as Pablo Hasél, who was criminally convicted for writing several insulting tweets, in which he, for example, called the royal family ‘parasites’ and a ‘criminal gang’. He also wrote an offensive rap song, in which he accused King Emeritus Juan Carlos I of being a drunkard, drug-user and frequent visitor of prostitutes. For a more detailed account on the facts, see here. As observed by Jacobo Dopico Gómez-Aller, Spain’s special crime of slander against the crown (Article 490.3 and 491 CP) has been repeatedly considered a violation of Article 10 of the European Convention on Human Rights (ECHR). Dopico concluded that if the Spanish rapper would bring his case before the European Court of Human Rights (ECtHR), the Court could – yet again – declare that this crime violates citizens’ right to freedom of expression.

So it went: Pablo Hasél brought his case to the Strasbourg Court. However, the outcome was a surprise to many. In Rivadulla Duró v. Spain (12 October 2023), the Court declared Pablo Hasél’s case inadmissible: the applicant’s conviction for royal slander^[1] did not disproportionality impair his right to freedom of expression. In this blog post, I will argue the Court’s conclusion is contradictory to its own jurisprudence.

The Final Episode: Rivadulla Duró v. Spain

While the applicant’s criminal conviction interfered with his right to freedom of expression, the Court repeated that interferences are still permissible within the Article 10, §2 ECHR framework. After establishing that the legality (‘prescribed by law’: Article 491 CP) and legitimacy (‘national security and public safety’, §26) criteria were met, the Court focused, as per usual, on the proportionality question.

To assess whether the interference was indeed ‘necessary in a democratic society’ (§43), the Court compared the facts of Rivadulla Duró to the similar Otegi Mondragon v. Spain. Here, the applicant had been convicted for calling the King ‘in charge’ of tortures and accusing him of ‘imposing his monarchical regime through torture and violence’ (Otegi, §10). The ECtHR declared this criminal conviction a violation of Article 10 ECHR. Although the Court admits there are some similarities between the two cases, the Court thinks Rivadulla Duró must be clearly distinguished from Otegi in three substantial ways (Rivadulla Duró, §45).

First, the capacity of the speaker was different; Otegi was a political representative elected by the people, whereas Rivadulla was a singer (§46-47).

Second, the context in which the statements were made varied significantly: Otegi made these statements orally at a press conference, unable to reformulate, refine or retract them after. Nor did Otegi’s statements call the King’s private life into question (§46). Rivadulla’s song, on the contrary, was written and recorded, ‘which presupposes that they were the result of a thought process’, so that it ‘cannot be justified by the immediacy of the context’ (§47). Regarding Rivadulla’s tweets, the Court stated that these constitute ‘accusations and allegations of serious offenses without any evidence beyond the applicant’s own opinion’ (§47).

The last distinction was the severity of the penalty: Otegi was sentenced to a one-year imprisonment (§46), while Rivadulla’s punishment was ‘only of a financial nature’ (§47).

Therefore, the Court concluded that Spain had correctly applied the ECtHR’s jurisprudence and had not disproportionately interfered with the applicant’s right to freedom of expression (§51-52).

The Court’s error in judgment

In my opinion, Rivadulla Duró v. Spain does not align with the Court’s jurisprudence on slander against the crown and is a major setback on the European standard of accepted political criticism against Heads of State. It is incomprehensible that Rivadulla Duró is only compared to Otegi Mondragon. In fact, there do exist other similar cases: for example, Stern Taulats v. Spain, where protesters publicly burned a large picture of the King; or Eon v. France, where a political activist held up a sign stating ‘Get lost, you sad prick’ to the President. In both cases, the Court concluded that criminally convicting the applicant’s political criticism was a violation of Article 10 ECHR. If we include this jurisprudence in the reading of Rivadulla Duró v. Spain, an Article 10 ECHR violation becomes the more coherent outcome of the case.

Capacity of the speaker

Since Rivadulla Duró is a singer instead of a parliamentarian, the Court’s regime of increased Article 10 protection for certain speakers, such as elected representatives (Otegi, §50; Castells v. Spain, §42), does not apply. Yet, a certain minimum standard of protection still applies to non-elected citizens. In both Stern Taulats v. Spain as in Eon v. France, the applicants were civilian activists. Although the applicants were not elected politicians, the Court still concluded that Article 10 ECHR had been violated. The same could have been concluded in Rivadulla Duró.

Context of the statements

In person, statements can be more ‘lively and spontaneous’ (Fuentes Bobo v. Spain, §48), since the speaker lacks any ‘possibility of reformulating, refining or retracting [statements] before they [are] made public’ (Otegi, §54, Fuentes Bobo, §46). Written statements, on the contrary, are put under more scrutiny since they are ‘the result of a thought process’ (Rivadulla Duró, §47). In Rivadulla Duró, the applicant’s written speech can be divided in two categories:  a rap song titled ‘Juan Carlos el Bobón’ (‘Juan Carlos the Idiot’) and several tweets (Rivadulla, §3).

First, the Court should have mentioned that the applicant’s rap song is a form of artistic expression. In previous cases, the Court has interpreted political artistic expression to be a form of satire. Thus, any interference with the artists’ expression should be examined with special care, since satire has the ‘inherent nature of exaggeration and distortion of reality’ and ‘naturally aims to provoke and agitate.’ (Eon v. France, §60; Alves da Silva v. Portugal, § 27). If the Court considered that the song was beyond the scope of protected artistic expression, it should have at least argued as to why this is. Instead, the Court completely disregarded this relevant contextual element.

Second, there is the issue of the applicant’s incriminating tweets. Here, the Court should have differentiated between the applicant’s tweets that personally targeted King Emeritus Juan Carlos I, and those that criticised the royal institution as a whole. The latter is obviously protected political speech; the Court has consistently held there is ‘little scope for restrictions on political speech, where freedom of expression is of the utmost importance’ (Otegi, §50; Castells, §43; Stern Taulats, §32). Instead, the Court does not distinguish between the tweets that could have been considered personal slander (for example, when the applicant called Juan Carlos I a ‘thief’ or a ‘shitty mafioso’) and the political criticism he has voiced against the monarchy in general (for example: the monarchy being ‘disgusting’ because they are ‘millionaires because of the misery of others’ while ‘pretend[ing] to care about the people’; or ‘monarchs giv[ing] lessons from palaces’ while ‘thousands of old people [are] going cold and without a safe home’; see Rivadulla Duró, §3). By not giving special consideration to the latter category, the Court actively undermines its broad protection of legitimate political speech.

Lastly, what about the applicant’s personal insults aimed at the King? In cases of alleged slander and defamation, the Court’s distinction between facts and value judgements is relevant. Although value judgements are ‘not susceptible to proof’ (Lingens v. Austria, §46), there must still exist ‘a sufficient factual basis to support it’. In Rivadulla Duró, the applicant’s speech is considered slander since his accusations were not based on facts, but solely on his own opinion (Rivadulla, §47). However, Rivadulla’s tweets were not entirely unfounded: Juan Carlos I was indeed appointed by dictator Franco, rumoured to have many mistresses, closely connected to the Saudi monarchs, alleged of corruption, and did accidentally kill his brother. Even though it is true that the applicant’s wording was often quite harsh, the Court has frequently stated that the ‘limits of acceptable criticism’ are much wider regarding public figures than for private individuals (Palomo Sánchez v. Spain, §71). Thus, the Court has given Article 10 protection to publicly burning the King’s picture (Stern Taulats), calling the monarch a ‘torturer’ (Otegi) or even labelling a right-wing politician as ‘neo-Nazi’ (Scharsach, §41). Since the applicant’s insults are of the same nature, a differential outcome in Rivadulla Duró v. Spain cannot be justified.

Severity of the penalty

In cases regarding slander of Head of States, the Court normally considers that Member States should better ‘restrain in the use of criminal proceedings against criticism of political institutions due to their dominant position in society’ (Otegi, §58; Castells v. Spain, §46; Dickinson v. Turkey, § 56). The use of prison sentences as punishment will only be accepted in exceptional circumstances (Otegi, §59). In Rivadulla Duró v. Spain, the Court gravely minimises the impact of the applicant’s ‘mere financial’ punishment. First, the applicant’s sanction could still have been executed as a prison sentence, since the national courts had ruled that upon non-payment, Rivadulla’s fine could be substituted by a 6-month deprivation of liberty (p. 26 AN’s Judgment; p. 20 SC’s ruling). Second, even if his sentence was not substituted for a prison sentence, a fine of 10,800 euros (Rivadulla, §8) is still a severe punishment. In Eon v. France, for example, the imposed sanction was a suspended fine of 30 euros. Yet, the Court still found that the mere recourse of criminal penalty ‘could have a chilling effect on satirical forms of expression’ (Eon, §61).

The ‘Pablo Hasél Case’… To Be Continued?

Article 10 ECHR provides protection to favourable ideas ‘but also to those that offend, shock or disturb’ (Rivadulla Duró, §25). Although this is frequently affirmed by the Court, Rivadulla Duró v. Spain is lacking this spirit of tolerance: the ECtHR should have condemned Spain for violating Article 10 ECHR. Therefore, Rivadulla Duró v. Spain illustrates, once again, that the casuistic nature of the ECtHR can sometimes lead to an uneven and unpredictable case law. Even though the Court has frequently ruled that a special law providing increased protection for Heads of State ‘will not, as a rule, be in keeping with the spirit of the Convention’ (e.g., Otegi, §55; Pakdemirli v. Turkey, § 52; Colombani v. France, §67), Rivadulla Duró v. Spain proves that the Court’s judicial creativity still leaves room for the Court to ignore this established principle.

The Court’s previous jurisprudence on slander against the crown has caused a wave of legislative reforms across Europe. Among others, Luxembourg (Eon, §22), France (Otegi, §55), Germany and more recently Belgium have abolished the increased slander protections for Heads of State. So, it was only a matter of time before Spain followed suit. In 2022 the Senate approved a proposal to decriminalise slander against the crown. The ball is now in the Congress’ camp, where it seems the matter has become a polarised issue. Back in 2019, the socialists and the conservatives were still both against abolishing insults against the crown. More recently, Unidas Podemos and some independentist-parties convinced the socialists (PSOE) to support the crime’s decriminalisation.

The conservative, right-wing parties (PP and Vox) still strongly oppose the proposal, They claim it would ‘legitimise slander’ and ‘guarantee immunity for the independentists in their campaign to demolish the symbols of Spain’. The left-wing’s counter arguments were mostly based on Spain’s condemnations for violating Article 10 ECHR, repeatedly by the ECtHR and by the Commissioner of Human Rights. However, since the last elections, the left and right-wing votes are very scattered; neither the PP nor PSOE achieved a clear majority in Congress. In light of this political context, Rivadulla Duró v. Spain’s timing is unfortunate. Even though it is an unconventional decision, it is likely that right-wing parties will use Rivadulla Duró v. Spain to avoid the abolition of slander against the crown. If they succeed, it is just a matter of time until Spanish courts, yet again, violate some political activist’s right to freedom of expression.

^[1] This post only focuses on the Court’s assessment of insults against the Crown; the applicant’s other two convictions (the glorification of terrorism and slander against state institutions) fall outside of this blog post’s scope.